Friday, October 26, 2012

Yesterday the Kentucky Supreme Court, in a 4-1-2 decision, aligned its interpretation of the free exercise provisions of the Kentucky Constitution (Sec. 1 and 5) with the U.S. Supreme Court's interpretation of the federal free exercise clause. In Gingerich v. Commonwealth of Kentucky, (KY Sup. Ct., Oct. 25, 2012), the majority upheld the convictions of a number of Amish men for violating KRS 189.820, which (before it was amended earlier this year to create an alternative for Amish objectors) required all slow-moving vehicles to display a bright orange-yellow triangle. The defendants, all members of the Old Order Swartzentruber Amish, claim the emblem is inconsistent with their religious requirement to be plain, and displays the trinity which is a symbol not adopted by the Amish. The majority in an opinion by Justice Noble, wrote:

This Court now finds that statutes, regulations, or other governmental enactments which provide for the public health, safety and welfare, and which are statutes of general applicability that only incidentally affect the practice of religion, are properly reviewed for a rational basis under the Kentucky Constitution, as they are under the federal constitution. Enactments that directly prohibit or restrain a religious practice are subject to a strict scrutiny standard of review. As discussed above, providing this clearer standard brings Kentucky's jurisprudence in line with United States Supreme Court precedent.

Justice Venters in a separate opinion concurred in the result, but said:

This Court is the final arbiter of the meaning of the Kentucky Constitution, and our interpretation of its terms should not be constrained by the opinions of federal courts interpreting the United States Constitution. Those opinions may be instructive and influential in our review of our state Constitution, but they do not control the meaning of the Kentucky Constitution; nor do they define the protections of liberty contained therein. We should no longer tether the meaning of the Kentucky Constitution to the pendulum of the federal court interpretations of the federal Constitution.

Justice Scott, in an opinion joined by Justice Abramson, argued:

the Kentucky Constitution unquestionably affords greater protection to the free exercise of religion than does the Federal Constitution. Accordingly, any law interfering with an individual's free exercise of religion must pass strict scrutiny or else be declared unconstitutional.

They concluded that while the state had a compelling highway safety interest, it had not used the least restrictive alternative in achieving its purpose. AP reports on the decision.